RJack wrote: [...] > Now, the SFLC utterly ignores the circuit precedent and claims: > > "Further, once Best Buy made a distribution of BusyBox that did not > comply with the license terms, the license terminated, and therefore any > further act of copying or distributing BusyBox by Best Buy (even if in > compliance with the license) is without Andersen's permission.
This is well known Stallman/FSF/SFLC moronity regarding termination of licensing contracts due to (material) breach. To wit: http://www.mlawgroup.de/publications/open_source_regulations_latest_update_15_04_08.PDF http://www.mlawgroup.de/publications/open_source_regulations_latest_update_15_04_08.PDF (See 6 Contract Law Issues) "Automatic termination of the license in case of breach of license terms (condition subsequent) - In a contract the termination is ultima ratio and needs prior notification" and http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaim&vol=1999/97476c "In addition, prior to the filing of the infringement suit, RT Graphics never took affirmative steps to terminate the license which it had granted. This court agrees with other courts which have previously held that such a measure is necessary on the part of the copyright holder. In Graham v. James, the Court of Appeals for the Second Circuit stated that "[e]ven assuming [the publisher] materially breached the licensing agreement and that [the programmer] was entitled to rescission, such rescission did not occur automatically without some affirmative steps on [the programmer's] part." 144 F.3d at 237-38. In Maxwell, the Court of Appeals for the Eleventh Circuit expressed a similar view: [E]ven assuming arguendo that the Miracle's conduct constituted a material breach of the parties' oral understanding, this fact alone would not render the Miracle's playing of the song pursuant to [Albion's] permission a violation of [Albion's] copyright. Such a breach would do no more than entitle [Albion] to rescind the agreement and revoke [his] permission to play the song in the future, actions [he] did not take during the relevant period. Like the programmer in Graham v. James and the songwriter in Maxwell, RT Graphics never formally withdrew previously-given permission which allowed the alleged infringer to use the copyrighted material. See also Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996) (even assuming that movie producer materially breached licensing agreement to use composer's song in film, composer never attempted to exercise any right of rescission and summary judgment of noninfringement of copyright was proper); Cities Serv. Helex, Inc. v. United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976) ("A material breach does not automatically and ipso facto end a contract. It merely gives the injured party the right to end the agreement; . . . ."). In the case at bar, the court finds that there was no rescission of the contract by plaintiff. Moreover, the Postal Service's conduct was insufficient to justify any rescission which could have taken place, and did not indicate a repudiation of the licensing agreement. Accordingly, the court holds that the Use Agreement was at all times valid and enforceable during the course of this dispute, and any remedy which the plaintiff may seek for its failure to receive credit cannot properly be based on a theory of copyright infringement. " BTW, even assuming successful rescission/termination with affirmative steps on the licensor part, what prevents the former licensee from entering into licensing relationship anew? The situation is no different when Microsoft would terminate my Windows 7 EULA and I just go and buy another copy and create another EULA relationship instead of terminated one. So just take a license, breach it, wait for termination, take another license, breach it, wait for termination... Rinse lather repeat. To prevent that, the license contract must specify a condition precedent regarding previously terminated licenses and condition the new grant on successfull resolution of the previous breach dispute. regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list gnu-misc-discuss@gnu.org http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss